Prop 8 Arguments

12/07/10

The argument was broken in two parts, with the first hour devoted to standing and the second hour spent discussing the merits of the case. I use the term ''hour'' in a figurative sense; neither portion of the argument succeeded in staying within the time allotted.


The first question before the court was whether or not appellants had standing to appeal Judge Walker's lower court ruling that Proposition 8 violated both the due process and equal protection clauses of the 14^th amendment of the US Constitution. The defendant's in the case, the Governor and Attorney General of California and the County Clerks of Los Angeles and Alameda Counties declined to defend the ballot measure at either the district court level or the appellate level. On appeal, a deputy clerk of Imperial County, represented by Stephen Cooper, intervened to defend proposition 8 on the grounds that the lower court injunction was binding against her, thereby giving her standing to appeal.

The court seemed skeptical of Cooper's argument on standing but also frustrated by the refusal of the state to defend the ballot measure. One of the questions that occupied a great deal of time was whether or not the deputy clerk was actually bound by Judge Walker's injunction. The deputy clerk is not a state officer and David Boies, one of the attorneys representing the homosexual couples that brought this case, made the point that the injunction applies only to the clerks of the two counties in question, along with the Governor and Attorney General. But when pressed, he conceded that in practice, she would have to issue marriage licenses to gay couples if the injunction stands. The difference, Boise maintained, is that her obligation would be based on the relationship between the Clerk's office and the Attorney General, and that if she were to refuse to issue licenses she could not be found in contempt of court for violating the injunction; rather she would have to answer to the AG of California.

The court also wanted to know if California law gave her the right to intervene as a defendant when no other state officer had done so, and suggested that they should certify the question to the California Supreme Court. Boise responded that such a certification would be irrelevant because even if California allowed her to intervene, she still would not meet the federal standard because she had not and could not identify a ''personal, concrete, or particularized injury'' as required by the Supreme Court.

The court, particularly the lone conservative Judge Randy Smith, seemed frustrated by the fact that the named defendants did not appear to defend the ballot measure. Because neither the Governor nor the Attorney General have the power to veto a ballot initiative in California, Judge Smith asked if they weren't accomplishing the same thing by refusing to defend one in court. Even if that were true, Boise insisted that ''The fact that there's no one to defend doesn't give standing [to the defendant-intervenors].''

In the second half of arguments, the court turned to the merits of the case. Cooper was back to argue for the appellants and Ted Olson took over for the plaintiffs. The court seemed to be fishing for ways to limit the scope of the decision and a great deal of time was spent discussing whether there was a difference between mandating that a state recognize a right that had been previously withheld and upholding a preexisting right that a state wanted to strip away. Prior to the passage of prop 8, the California Supreme Court had said that limiting marriage to heterosexual couples was a violation of the state's equal protection clause. The court asked both sides what effect that had on their decision and implied that it would be more comfortable if they could base the outcome of the case on that distinction. Both sides urged the court to confront the more fundamental issue. Cooper pressed the theory that under California law, the voters were acting as a judicial body above the state Supreme Court and so in reality the right never existed in California because the highest authority, the voters, overturned the decision of the Supreme Court. This is a strained argument in light of the fact that same sex couples who were married in between the court's decision and the election remain legally married today. Olson, easily the most aggressive of the attorneys in today's arguments, repeatedly urged the judges to look beyond the fact that Californian's once had the right only to have it removed, hammering away at the Supreme Court's repeated decisions calling the right to marry a fundamental right of liberty, privacy, association and identity.

Most of the court's time was occupied by this line of inquiry with only a small amount of time talking about the right to marry itself. Some attention was given to whether a rational basis test or strict scrutiny should apply, and Olson concluded his argument by saying ''California has taken a class of citizens and put them in a separate category; that act of discrimination and there is no doubt that it is discrimination and there is no doubt that it does great harm, can it be justified under any standard of constitutional analysis and I argue it cannot be justified at the lowest standard of constitutional analysis.'' (This quotation and others in this article are taken from the live blog at prop8trialtracker.com)

Cooper's argument for upholding the proposition was based on procreation and society's interest in promoting heterosexual relationships for the benefit of the children to be raised in stable two-parent families. Judge Reinhardt barely let him take a breath before noting that that was a good argument for banning divorce but didn't seem applicable to banning same sex marriages. The court wanted to know what the basis for denying same sex couples the right to the word ''marriage'' is, given that California law already gives same sex domestic partnerships all the rights and benefits that married couples receive. Cooper's only response was to say that the word is the institution and that changing the institution would damage it irreparably. In other words, marriage should be limited to heterosexual couples because that's what marriage is. Appearing briefly after Olson and arguing on behalf of the city of San Francisco in opposition to prop 8, Therese Stewart took that answer on directly. Stewart said that giving different groups of people the same rights under different names proves that there is no rational basis for the distinction and that the separation harms gay couples by telling them and the world that they are not worth as much as heterosexual couples.